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Justices Seem Inclined to Trim Exxon Damages

Top Court Hears Arguments Over 1989 Alaska Spill

by

Mark Sherman

The Supreme Court seemed inclined Wednesday to let Exxon Mobil Corp. off the hook for some of the $2.5 billion the energy giant was ordered to pay as punishment for a massive oil spill in Alaska nearly 19 years ago.

The justices questioned lawyers representing both the company and the nearly 33,000 victims of the Exxon Valdez disaster for 90 minutes, making only one passing reference to Exxon's record profit. The award represents less than three weeks' worth of Exxon profit, which was $11.7 billion in the last three months of 2007.

Exxon has vigorously fought to knock down or erase the punitive damages verdict by a jury in Alaska in 1994 for the accident that dumped 11 million gallons of oil into Prince William Sound. The environmental disaster fouled 1,200 miles of Alaskan coastline and led to the deaths of hundreds of thousands of seabirds and marine animals.

The verdict has been cut in half once by a federal appeals court.

The problem for the people, businesses and governments who waged the lengthy legal fight against Exxon is that the Supreme Court in recent years has become more receptive to limiting punitive damages awards. The Exxon Valdez case differs from the others in that it involves issues peculiar to laws governing accidents on the water.

But several justices said that limits could be appropriate in this context too.

Justice Stephen Breyer, who has voted to overturn damages awards, said he worried how the court's decision in this case would play in other maritime accidents.

"This is a very dramatic accident. It involves oil spills, and they cause an enormous amount of trouble," he said. "But there are accidents every day, and ships are filled with accidents like automobiles in other places. And there are all kinds of things that go wrong. ... What principles do you have to suggest, if any, for creating a fair system that isn't just arbitrary?"

Justices Anthony Kennedy and David Souter suggested that perhaps a reasonable number would be twice the amount of money the company has paid to compensate victims for economic losses, about $500 million.

Overall, Exxon has paid $3.4 billion in fines, penalties, cleanup costs, claims and other expenses resulting from the worst oil spill in U.S. history.

"Exxon gained nothing by what went wrong in this case and paid dearly for it," said lawyer Walter Dellinger, who urged the court to throw out the punitive damages judgment that has been upheld by the Ninth Circuit Court of Appeals in San Francisco.

Stanford University law Professor Jeffrey Fisher said the commercial fishermen, Native Alaskans, landowners, businesses and local governments he represents have each received about $15,000 so far "for having their lives and livelihood destroyed and haven't received a dime of emotional-distress damages."

Fisher said that nothing in prior Supreme Court decisions should cause the justices to overturn the $2.5 billion award, about $75,000 for each plaintiff.

It was less clear how the court would rule on the issue of whether the company should have to pay damages at all under the Clean Water Act and centuries-old laws governing shipping. Justice Samuel Alito, who owns Exxon stock, is not taking part in the case. A 4-4 split on that or any issue would leave the appeals court ruling in place.

The key element there is whether Exxon can be held liable at all for the acts of Exxon Valdez captain Joseph Hazelwood. Hazelwood was not on the ship's bridge when the accident occurred and had been drinking shortly before it left port, both in violation of Coast Guard rules and company policy.

"What more can the corporation do other than say, 'Here is our policies'? And try to implement them?" Chief Justice John Roberts said.

Fisher said Exxon had many warnings over three years that Hazelwood, an alcoholic, was drinking and that it knew that "putting a drunken master in charge of a supertanker was a potential for disaster and incalculably raised the chances of a disaster and a catastrophic spill occurring."

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Tom-Joad-like, celebrity chef and Spanish immigrant José Andrés has opened a pop-up kitchen in D.C. to help feed thousands of federal workers being stiffed by the Man-Baby-In-Chief. Andrés' non-profit World Central Kitchen, which has fed millions of disaster victims in Puerto Rico and around the globe, served almost 10,000 meals in two days, with long lines of tearful, angry people grateful for a hot meal. Andrés' homespun, humane mantra: "What's good for you, must be good for all."

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